MANAGING POOR WORK PERFORMANCE FAIRLY & LAWFULLY

Written by Dineo Sedibeng

The Code of Good Practice on Dismissals emphasises that poor performance (incapacity) must be managed through a supportive and corrective process, rather than immediate disciplinary action. The primary objective is to assist the employee in meeting the required standards before dismissal is considered as a last resort.

Poor work performance, often referred to as incapacity due to poor performance, arises when an employee fails to meet the required standards of the job, despite being reasonably capable of doing so. In simple terms, poor work performance occurs when an employee’s output, quality of work, or work-related behaviour does not meet the employer’s expected standards for their role within the establishment.

Examples of Poor Work Performance

• Consistently missing targets or deadlines

• Producing work of poor quality (errors requiring rework)

• Not meeting sales or productivity expectations

• Inability to perform required tasks despite training

• Slow work output compared to reasonable standards

• Poor client service due to lack of skill (not attitude)

Below is a structured process to address poor work performance fairly and lawfully.

Key Procedural Steps

1. Identify and Communicate Performance Gaps

The employer must clearly inform the employee of:

• The required performance standard; and

• The specific areas where the employee is not meeting expectations.

2. Investigate the Cause

The employer must assess the reasons for poor performance, which may include:

• Lack of skill or competence

• Insufficient training or resources

• Personal or health-related challenges

3. Provide Support and Training

Appropriate corrective measures must be implemented, such as:

• Training and development

• Ongoing guidance and supervision

• Counselling where necessary

4. Allow Reasonable Time for Improvement

The employee must be given a fair and reasonable opportunity to improve, taking into account:

• The nature of the job

• The complexity of the required skills

• The employee’s level of experience

5. Implement Progressive Measures

A structured Performance Improvement Plan (PIP) should:

• Set clear, measurable targets

• Include regular review periods

• Record progress and interventions

6. Conduct an Incapacity Enquiry

If performance does not improve:

• A formal incapacity enquiry must be conducted

• The employee must be given an opportunity to state their case

• Representation (e.g. a union representative or fellow employee) must be allowed

What is Incapacity?

Incapacity refers to situations where an employee is unable to perform their duties to the required standard due to factors beyond their control. This includes both poor work performance (lack of skill or competence) and incapacity arising from ill health or injury.

In all cases, the employer is required to investigate the nature and extent of the incapacity, determine whether it is temporary or permanent, and consider appropriate measures such as training, accommodation, or alternative placement within the establishment before dismissal is considered.

Case Law Illustration (Incapacity and Fair Process)

In SACCAWU obo Bologo v JD Group (Pty) Ltd [2025] 8 BALR 904 (CCMA), the Commission for Conciliation, Mediation and Arbitration upheld the dismissal of a long-serving employee for incapacity due to ill health.

Background

The employee, employed since 2012, was dismissed on 16 October 2024 for incapacity related to ill health. Between 1 April and 9 September 2024, she was absent for 163 days. After exhausting her sick leave, a portion of her annual leave was utilised to maintain income. The employee had a history of prolonged absences dating back to 2019, often without adequate or timeous medical documentation, as well as a pattern of extended absences following the renewal of sick leave cycles.

The employer conducted an incapacity process, including consultation and attempts at accommodation within the establishment. Assistance was provided with disability benefit applications, and alternative measures were explored. Despite these efforts, the employee remained unable to meet the inherent requirements of the position.

Although this case relates to ill-health incapacity, it reinforces an important principle applicable to poor performance cases: employers are required to follow a fair, structured, and supportive process before dismissal is considered.

What Poor Performance is NOT

It is important to distinguish poor performance from misconduct:

Poor Performance (Incapacity)

• The employee cannot perform the job to the required standard

• Requires training, guidance, or support

Misconduct

• The employee is unwilling to comply or deliberately breaks rules

• Involves negligence, refusal, or intentional wrongdoing

Example:

• A nail technician who struggles with technique despite training = poor performance

• A nail technician who refuses to follow hygiene standards = misconduct

Key Principles of Fairness

Substantive Fairness

• The employee must have been aware of the required standard

• The employee must have been given a fair opportunity to improve

Procedural Fairness

• A fair process must be followed, including consultation and an opportunity to respond

Proportionality

• Dismissal should only be considered when all reasonable alternatives have been exhausted

Special Considerations

Probationary Employees

Employers may apply a less stringent process; however, fairness still requires evaluation, guidance, and an opportunity to improve.

Senior or Highly Skilled Employees

Formal warnings or extended processes may not always be required. Such employees are expected to self-assess and meet performance standards. In certain circumstances, dismissal may be justified more swiftly where performance is clearly inadequate.

Small Establishments

The 2025 Code allows for more flexible and less formal procedures. However, the principles of fairness must still be upheld.

In conclusion, managing poor work performance in terms of the Code of Good Practice on Dismissals, requires a balanced, fair, and structured approach that prioritises correction over punishment. Employers are expected to act reasonably by setting clear standards, identifying shortcomings, and providing the necessary support, training, and time for employees to improve within the establishment.

Incapacity arising from poor performance is not a disciplinary issue, but rather a question of ability instead of willingness. As such, the process must remain developmental and evidence-based, ensuring that the employee is given a genuine and fair opportunity to meet the required standards before dismissal is considered.